JUDGMENT : A. J. DESAI, J 1. These two appeals have been filed by the convicts, namely, Prabhatbhai Somabhai Nayak and Dineshbhai Udesinh Nayak challenging their conviction recorded vide judgment and order dated 27.03.2015 by the learned 3rd Additional Sessions Judge, Panchmahal, Godhra in Sessions Case No.127 of 2014 by which both the appellants were convicted for the offences punishable under Sections 302 and 114 of the Indian Penal Code, 1860 and they have been sentenced to life imprisonment and a fine of Rs.10,000/- and in default thereof, further one year simple imprisonment has been ordered. 2. The appeals came to be admitted by this Court on 22.2.2016. The Records and Proceedings along with the Paperbook has been called for from the learned Sessions Court which has reached to this Court and placed before us. 3. The case put forward by the prosecution is as under :- 3.1 That on 30.5.2014, one Minaben wife of Vakhatsinh Shanabhai Nayak, resident of village Kharkhadi Mahadev Faliya, Tal. Ghoghamba, Godhra lodged an FIR with Rajgadh Police Station and declared that she resides along with her husband Vakhatsinh, her in-laws at village Kharkhadi. Her father-in-law has two brothers, one is appellant - Prabhatbhai Somabhai Nayak and resides in the house which is adjacent to each other. She further declared that her father-in-law and her uncle-in-law Prabhatbhai Somabhai Nayak are jointly carrying on agricultural work and distribute the sale proceeds received from selling the agriculture produce. Prabhatbhai Nayak has only one daughter, namely, Umedaben and she is residing at another village with her husband. Umedaben has two sons and elder son is Dineshbhai Udaisinh Naik - appellant of Criminal Appeal No.140 of 2016. It is further alleged in the FIR that on 29.5.2014, when she was in the field, which is being cultivated jointly by her father-in-law and her uncle-in-law, some altercation took place between Prabhatbhai Somabhai Nayak and her husband, namely, Vakhatsinh Shanabhai Nayak and started using abusive language and, therefore, when her husband asked Prabhatbhai Nayak not to use filthy language, Dineshbhai Udaisinh Naik came with a wooden log and gave a blow on the head of her husband pursuant to which he fell down. The Sarpanch called 108 Ambulance and immediately, her husband Vakhatsinh was taken to Ghoghamba Government Civil Hospital. Thereafter, he was transferred to Vadodara Civil Hospital where he succumbed to the injuries. The Sarpanch called 108 Ambulance and immediately, her husband Vakhatsinh was taken to Ghoghamba Government Civil Hospital. Thereafter, he was transferred to Vadodara Civil Hospital where he succumbed to the injuries. With the above allegations, FIR bearing I C.R. No.63 of 2014 came to be filed for the offences punishable under Sections 302, 504 and 114 of the Indian Penal Code. 3.2 Appellants of both the appeals came to be arrested by the Investigation Officer. Upon completion of investigation, on the basis of the material collected against the accused persons, the Investigating Officer found a prima facie case against the accused and charge sheet came to be filed before the Court of learned Judicial Magistrate First Class, Godhra for the alleged offences. Since the offence alleged against the accused persons was triable by the Court of Sessions, the case was committed to the Court of Sessions under Section 209 of the Code of Criminal Procedure, 1973, which came to be registered as Sessions Case No.127 of 2014. 3.3 On committal, the case was transferred and placed for trial before the learned 5th Additional Sessions Judge, Panchmahal @ Godhra who had initially framed charge vide Exh.2 for the alleged offence. The charge was read over and explained to the accused. Plea of each accused came to be recorded vide Exh.3 & 4, wherein the accused pleaded not guilty to the charge and claimed to be tried. 3.4 In order to bring home the charge leveled against the accused, the prosecution has examined as many as 12 testimony witnesses and also produced documentary evidence in the form of Panchnama, P.M. Note, F.S.L. Report and relied upon the contents of the same. After recording the evidence of the prosecution witnesses, the learned Additional Public Prosecutor submitted closing purshis. Thereafter the learned Sessions Court explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements under Section 313 of the Code. In their further statements, they denied the case of the prosecution in entirety as according to them they have been roped in a false case. However, they have examined only one witness i.e. Dr. Vinaykumar V. Singh, Medical Officer of C.H.C., Mora - Exh.57 in support of their defence who had initially treated the deceased. In their further statements, they denied the case of the prosecution in entirety as according to them they have been roped in a false case. However, they have examined only one witness i.e. Dr. Vinaykumar V. Singh, Medical Officer of C.H.C., Mora - Exh.57 in support of their defence who had initially treated the deceased. 3.5 At the end of trial, on appreciation, evaluation, analysis and scrutiny of the evidence on record, the learned 3rd Additional Sessions Judge, Panchmahal @ Godhra vide judgment and order dated 27.03.2015 rendered in Sessions Case No.127 of 2014, convicted and sentenced the appellants - accused, as stated above. 3.6 Hence the present appeal. 4. Mr. J.K. Shah, learned Additional Public Prosecutor appearing for the respondent - State has fairly conceded that Criminal Appeal No.139 of 2016 would not survive in view of the fact that the appellant - Prabhatbhai Somabhai Nayak has already been released by the Jail Authority on 19.7.2016 in view of Circular of Home Department, Government of Gujarat dated 17.6.2016 and 24.6.2016 which provides that the convicts who are above the age of 80 years, their sentence is remitted. Hence, the said appeal stands disposed of as not survive. In the above circumstances, the case of appellant of Criminal Appeal No.140 of 2016 is taken up for consideration. Learned advocate Mr. Ashish Dagli was appointed through legal aid to represent appellant of Criminal Appeal No.140 of 2016 vide order dated 24.8.2021 passed by the coordinate Bench of this Court. 5. Mr. Hardik Rawal as well as Mr. Darshit M. Kamdar, learned advocates appearing for the appellants, at the outset, submit that they do not challenge the involvement of the appellant of Criminal Appeal No.140 of 2016 - Dineshbhai Udaisinh Nayak in the crime. However, they would submit that considering the manner and method in which the incident has taken place as well as the role alleged to have been played by the appellant, the appellant may be convicted accordingly. 5.1 By taking us through the deposition of the complainant i.e. Minaben Vakhatsinh Nayak P.W. 8 Exh.28, they would submit that it is an undisputed fact that the deceased along with his family and the appellants are closely related and residing next door neighbours. 5.1 By taking us through the deposition of the complainant i.e. Minaben Vakhatsinh Nayak P.W. 8 Exh.28, they would submit that it is an undisputed fact that the deceased along with his family and the appellants are closely related and residing next door neighbours. They would further submit that pursuant to the claim of ownership of land, some altercation had taken place between the deceased i.e. Vakhatsinh Nayak - husband of the complainant and his uncle Prabhatbhai Somabhai Nayak and some scuffle has begun. However, the said witness has stated that she was under the impression that no fight will take place. However, after sometime, Prabhatbhai Somabhai Nayak caught hold the deceased and his grandson Dineshbhai Udaisinh Nayak came with a wooden log and gave a blow on the head of the deceased which resulted into serious injury. They would further submit that there was no premeditation on the part of any of the appellants to commit the murder and having seen his elderly grandfather fighting with his maternal uncle, gave a single blow and hence, the case of the appellant of Criminal Appeal No.140 of 2016 i.e. Dineshbhai Udaisinh Nayak would fall under Exception 4 of Section 300 of the Indian Penal Code. They would further submit that the sole eyewitness of the crime i.e. Minaben Vakhatsinh Nayak P.W. 8 Exh.28 has categorically stated in her deposition that some scuffle took place between Prabhatbhai Somabhai Nayak and her deceased husband which was a sudden fight and in heat of moment, the appellant - Dineshbhai Udaisinh Nayak had given a single blow of wooden log on the head of the deceased and, therefore, the case of the appellant would fall under Part II of Section 304 of the Indian Penal Code and hence, the sentence of the appellant may be reduced accordingly. 5.2 By taking us through the deposition of Dr. Anilkumar Rambahadur Pandey P.W. 4 Exh.20 who has performed the Post Mortem, they would submit that as per the deposition of the said witness, the deceased had sustained a single blow on the head which is of size of 3 c.m. X 1.5 c.m. on right temporal region. 5.2 By taking us through the deposition of Dr. Anilkumar Rambahadur Pandey P.W. 4 Exh.20 who has performed the Post Mortem, they would submit that as per the deposition of the said witness, the deceased had sustained a single blow on the head which is of size of 3 c.m. X 1.5 c.m. on right temporal region. They would further submit that since in a heat of moment, a blow was given, though it might be on a vital part, there was no premeditation or intention on the part of any of the appellants to commit the murder of deceased since there was no complaint lodged by any of the parties with regard to the agricultural land which was being cultivated jointly. 5.3 They have also taken us through the deposition of Defence Witness No.1 - Exh.57 - Dr. Vinaykumar V. Singh, Medical Officer, C.H.C., Mora, Tal. Morvahadaf, Dist. Panchmahal who has given primary treatment to deceased and history was recorded at the instance of deceased Vakhatsinh. The said witness has admitted that prima facie, he found the injury of simple nature and the same was recoverable and the patient can recover within a period of one or two weeks. 5.4 They would further submit that the role alleged to have been played by the appellant - Dineshbhai Udaisinh Nayak is that he gave a blow with wooden log on the head of the deceased which resulted into murder of the deceased. However, since there was no premeditation or intention of the appellant to commit the murder of deceased and since the entire incident happened in a heat of moment and since the appellant is behind bar since more than 7 years, appropriate sentence may be awarded to the appellant. 6. On the other hand, Mr. J.K. Shah, learned Additional Public Prosecutor appearing for the respondent - State had supported the reasons assigned by the learned Sessions Court and would submit that for a trivial dispute, the appellant had given a blow on the vital part with such a force which resulted into death of a person. He has also taken us through the P.M. Note Exh.21 and would submit that the force used by the appellant is such that it would be safe to come to a conclusion that there was a clear intention on the part of the appellant to commit the murder. He has also taken us through the P.M. Note Exh.21 and would submit that the force used by the appellant is such that it would be safe to come to a conclusion that there was a clear intention on the part of the appellant to commit the murder. He, therefore, would submit that no interference is called for by this Court and Criminal Appeal No.140 of 2016 may accordingly be dismissed. He has not argued more than what he has submitted herein above since the appellant has not challenged his involvement in the crime. 7. We have heard learned advocates appearing for the respective parties, perused the judgment of the learned Sessions Court. We have also gone through the Records and Proceedings of Sessions Case received from the learned Sessions Court. Since the appellant has not challenged his involvement in the crime and since it was requested to alter the conviction as the case is particularly based on the sole eye-witness i.e. Minaben Vakhatsinh Nayak i.e. wife of the deceased, we have examined the evidence on that line and have not discussed the say of other witnesses who are either Panch witnesses or Investigating Officers. 8. It is an undisputed fact that the deceased and the appellant are closely related. The appellant - Dineshbhai Udaisinh Nayak is son of Umedaben who is daughter of appellant - Prabhatbhai Nayak. Prabhatbhai Nayak is real uncle of the deceased. The said Prabhatbhai Nayak had no son. However, his only daughter Umedaben is residing with her family and two sons (including appellant - Dineshbhai Udaisinh Nayak) in another village. As per the case of the prosecution, on 29.5.2014, when Minaben Vakhatsinh Nayak - wife of deceased was in the agricultural field, which is being cultivated jointly by her father-inlaw and her uncle-in-law, some altercation took place between Prabhatbhai Somabhai Nayak and her husband, namely, Vakhatsinh Shanabhai Nayak and started using abusive language and, therefore, when her husband asked Prabhatbhai Nayak not to use filthy language, Dineshbhai Udaisinh Naik came with a wooden log and gave a blow on the head of her husband pursuant to which he fell down and thereafter succumbed to the injuries. We have also gone through the deposition of Dr. Anilkumar Rambahadur Pandey P.W. 4 Exh.20 who has performed the Post Mortem as well as P.M. Note Exh.21. We have also gone through the deposition of Dr. Anilkumar Rambahadur Pandey P.W. 4 Exh.20 who has performed the Post Mortem as well as P.M. Note Exh.21. On perusal of the P.M. Note, we found that except single injury on the head i.e. temporal region 2.5 cm above right ear on the deceased, no other injury has been found. Hence, it can safely be said that it is a case of single blow. 9. The Hon'ble Supreme Court in the case of Ranjit Sarkar v. State of Tripura, (2016) 15 SCC 756 has clearly observed in paragraphs 9 to 11 as under :- "9. We have carefully gone through the statement of PW-15 Dr. Ranjit Kumar Das, who conducted post mortem examination on the dead body of Anil Das on 18.6.2007. In fact, first four ante mortem injuries mentioned by the Medical Officer relate to single injury. The first one is stitched wound. The second is haematoma on the deeper layer of scalp over right parietal region. The third injury also relates to the same as it discloses fracture on the depressed bone of the head on anterior part of right parietal bone. The fourth ante mortem injury also relates to above three injuries, which discloses subdural haemorrhage present over cerebral hemispheres. The only ante mortem injury No. 5 is actually the second injury which is an abrasion measuring 3cm x 2cm over the dorsum of left wrist joint. 10. PW-2 Anil Das also does not state about more than one blow given by the appellant on the head of the deceased with wooden file. The injury on the dorsum of left wrist joint could have been caused when the injured fell down on the ground. As such, in substance the evidence on record suggests only one blow given by the appellant on the head of the deceased which appears to have been given with full force. 11. In the above facts and circumstances, having re-assessed the depositions of witnesses and other evidence on record, we are of considered opinion that the act on the part of the appellant is covered by Part I of Section 304 IPC. Therefore, we set aside the conviction and sentence under Section 302 IPC, awarded by the trial court and affirmed by the High Court. Therefore, we set aside the conviction and sentence under Section 302 IPC, awarded by the trial court and affirmed by the High Court. Instead, the appellant Ranjit Sarkar is convicted under Section 304 Part I, and sentenced to rigorous imprisonment for a period of ten years. With this modification in the conviction and sentence, the appeal stands disposed of." 10. The Hon'ble Supreme Court in the case of Nandlal v. State of Maharashtra, (2019) 5 SCC 224 has held in paragraphs 12 to 14 as under :- "12. The only point falling for consideration is whether the appellant-accused has made out a case for modification of his conviction under Section 304 Part II IPC instead of Section 302 IPC ? 13. In order to bring the case within Exception 4 to Section 300 IPC, the following conditions enumerated therein must be satisfied :- (i) The act must be committed without premeditation in a sudden fight in the heat of passion; (ii) upon a sudden quarrel; (iii) without the offender’s having taken undue advantage; and (iv) the accused had not acted in a cruel or unusual manner. 14. Even if the fight is unpremeditated and sudden, if the weapon or manner of retaliation is disproportionate to the offence and if the accused had taken the undue advantage of the deceased, the accused cannot be protected under Exception 4 to Section 300 IPC. Considering the scope of Exception 4 to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395 , this Court held as under :- "7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate……….. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate……….. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”" (emphasis supplied). The same principle was reiterated in Pappu v. State of M.P. (2006) 7 SCC 391 and in Surain Singh v. State of Punjab (2017) 5 SCC 796 where the conviction under Section 302 IPC was modified under Section 304 Part II IPC." 11. The expression “undue advantage” as used in the provision means “unfair advantage”" (emphasis supplied). The same principle was reiterated in Pappu v. State of M.P. (2006) 7 SCC 391 and in Surain Singh v. State of Punjab (2017) 5 SCC 796 where the conviction under Section 302 IPC was modified under Section 304 Part II IPC." 11. In light of the above principles laid down by Hon'ble the Supreme Court and considering the depositions of the witnesses and other evidence on record referred above, we are of the considered opinion that the same suggests only one blow given by the appellant on the head of the deceased which appears to have been given with full force. Furthermore, the act was committed without premeditation in a sudden fight in the heat of passion and the accused has not taken any undue advantage of the same and the accused had not acted in a cruel or unusual manner. Hence, we are of the considered opinion that the act on the part of the appellant is covered by Part II of Section 304 IPC. Therefore, we set aside the conviction and sentence recorded by the learned Sessions Court under Section 302 ipc and instead, the appellant is convicted under Part II of Section 304 IPC and sentenced to imprisonment for a period of ten years. Accordingly, we pass the following order :- Criminal Appeal No.139 of 2016 would not survive in view of the fact that the appellant - Prabhatbhai Somabhai Nayak has already been released by the Jail Authority on 19.7.2016 in view of Circular of Home Department, Government of Gujarat dated 17.6.2016 and 24.6.2016 which provides that the convicts who are above the age of 80 years, their sentence is remitted. Hence, the said appeal stands disposed of as not survive. Criminal Appeal No.140 of 2016 is partly allowed. The judgment and order of conviction and sentence dated 27.03.2015 rendered by the learned 3rd Additional Sessions Judge, Panchmahal, Godhra in Sessions Case No.127 of 2014 convicting the appellant - Dineshbhai Udesinh Nayak for the offences punishable under Sections 302 and 114 of the Indian Penal Code, 1860 is converted into conviction under Section 304 Part-II of the Indian Penal Code, 1860 and accordingly sentence of life imprisonment is reduced to sentence of 10 years. The appellant – Dineshbhai Udesinh Nayak shall be released from the prison on completion of 10 years sentence, if not required in any other case. Rest of the sentence imposed by the trial court is upheld and confirmed. Connected Criminal Misc. Application stands disposed of. Record and Proceedings be sent back to the court concerned.